RECOVERY. The restoration of a for mer right, by the solemn judgment of a court of justice. 3 Murph. No. C. 169.
A common recovery is a judgment obtained in a fictitious suit, brought against the tenant of the freehold, in consequence of a default made by the person who is last vouched to warranty in such suit. Bacon, Tracts, 148.
A true recovery, usually known by the name of recovery simply, is the procuring a for mer right by the judgment of a court of com petent jurisdiction: as, for example, when judgment is given in favor of the plaintiff when he seeks to recover a thing or a right.
2. Common recoveries are considered its mere fortes of conveyance er common assurances: al though a common recovery is a fictitious suit, yet the same mode of proceeding must be pursued, and ail the forms strictly adhered to, which are neces sary to he observed in an adversary suit. The firet thing. therefore, necessary to be done in suffering a common recovery is that tbe person who is tu be the demandant, and to whom the lands are to he adjudged, would sue out a writ er prsecipe against the tenant of the freehold; whence such tenant is usually called the tenant to the pnecipe. In obe dience to this writ the tenant appears in eeurt, either in person or by his attorney ; hut, instead of defending the title to the land himself, he calls en sowe other person, who upon the original purchase is supposed to have warranted the title, end prays that the person may he called in to iefend the title which lie warranted, or otherwise to give the tenant lands of equal value te these he shall lose by the defect of his warranty. This is called the voucher vocatia, or calling to warranty. The person thus called to warrant, who is usually called the vouchee, appears in court, is impleaded. and enters into the warranty, hy which means he takes upon himself the defence of the land. The defendant then desires leave of the court to imparl, or confer with the %%niche° in private, whieh ie granted of course.
Soon after the demandant returns into court, but the vouchec disappears ur makes default, in con sequence of which it is presumed by the cuurt that he has no title to the lands demanded in the writ, and therefore cannot defend them; whereupon judg.
ment is given fur the demand:not, now called the rccoverer, to recover the lands in question against the tenant, and for the tenant to recover against the vouchee lands of equal value in recompense for those so warranted by him, and new lost by his default. This is called the recompense of recovery in value ; but as it is customary for the crier of the court to act,,who is hence called the common vuuchee, the tenant d`an only have a nominal and not a real recompense for the land thus recovered against him by the demandant. A writ of &there facias is then sued out, directed to the sheriff of the county in which the lands thus recovered ale situated; and en the execution and return of the writ the re covery is completed. The recovery here described is with single voucher; but a recovery may he, and is frequently, suffered with double, treble, or further voucher, as the exigency of the case may require, in which ease there are several judgtnents against the several vouchees.
3. Common recoveries were invented hy the ec clesiastics in urder to evade the statute of mort main, hy which they were prohibited from pur chasing, er receiving under the pretence of a free gift, any land ur tenements whatever. They have been used in some states for the purpose of break ing the entail of estates. See, generally, Cruise, Digest, lit. 36; 2 Wms. Saund. 42, n. 7; 4 Kent, Comm. 487; Pigot, Comm. Rec. passim.
All the learning in relation to common recoveries is nearly obsolete, a,s they are out of use. Rey, a French writer, in his work Des Institutions Judi ciaires de FAugleterres, tom. p. 221, points out what appears to him the absurdity of a common recovery. As to cemmen recoveries, see 3 Serg. R. Penn. 485; 9 id. 330: 1 Yeates, Penn. 244 ; 4 id. 413; 1 Whart. Penn. 139, 151 ; 2 Rawle, Penn 168; 6 Penn. St. 45; 2 Halst. N. J. 47; 5 Mass. 438; 6 id. 328; 8 id. 34; 3 Harr. & J. Md. 292.